Vaccine Mandate for Federal Employees: Will Courts Approve New Presidential Power? Will Employees Stay or Quit?

What are the limits on presidential power for federal employees? Does the vaccine mandate exceed any limits on presidential power?

The federal government strives to be a “model employer”. Of course, the definition of a “model employer” varies depending on election results.

How does issuing a vaccine mandate fit in with the concept of a model employer? Some see the mandate as providing a safer workplace. Others see requiring disclosure of personal medical information and requiring taking a vaccine as an unreasonable imposition on their personal freedom as an American citizen.

A number of federal employees are facing a dilemma that they probably never anticipated. Can the federal government require them to receive the COVID vaccine in order to continue a career in the federal government?

For most federal employees, it is not an immediate problem as they have received the vaccine. This still leaves tens of thousands of others who are now being required to get the vaccine shots very soon. Those who do not receive the vaccine are putting their futures as federal employees at risk.

Will Federal Employees Leave Government or Stay With Vaccine Requirement?

In a recent survey of more than 5,200 people, most of whom are federal employees or retirees, more than 63% of those responding indicated they did not agree with the decision of the federal government to require COVID vaccinations for employees. More than 35% of respondents indicated they did not plan on getting vaccinated. Almost 32% said they would leave a federal job if it required being vaccinated. About 69% thought federal employee unions would go along with the vaccination mandate.

While 32% of those responding said they would leave a federal job if getting a vaccine remains as a requirement, that seems unlikely. When actually faced with abandoning a federal paycheck and the various benefits available, some or even many of those who threatened to leave are likely to opt to get the vaccine and retain their status as federal employees.

Should Federal Employees Be Required to Get a Vaccine?

There is no doubt the required vaccination issue is encountering heavy resistance. There are already a growing number of lawsuits on vaccine mandates.

While federal employee unions are the “exclusive representative” of numerous federal bargaining units, the reality is the national unions are on the sidelines.

The legal challenges are now coming from a newly formed group of federal employees that are behind many of the lawsuits challenging the mandatory vaccines.

New Lawsuits On the Way

Action is already occurring with existing lawsuits seeking a restraining order and another one seeking a preliminary national injunction and that the Executive Orders requiring a vaccine be declared unlawful.

In a Zoom call with more than five hundred people this week, the group feds4medfreedom arranged a call on upcoming lawsuits with an attorney from Boyden Grey & Associates explaining the issues in the upcoming cases and how federal employees can participate in the lawsuits if they choose to do so.

The newest lawsuit will be filed in Texas very soon. It is separate from the earlier complaint filed by the Federal Practice Group. Any federal employee wishing to participate in the newest legal challenge has to complete a new intake form to be included. Joining is not free as it is necessary to pay the $325 retainer fee through GiveSendGo and upload the receipt when completing the intake form. The group notes the fee could go up to $1000 if the lawsuit is successful.

Issues in the Lawsuit

Jonathan Berry, an attorney with Boyden Grey, provided an overview of issues in the lawsuit and the pros and cons of joining the lawsuit.

The lawsuit will be pursuing broad relief. It will argue that the Executive Order is arbitrary and capricious and not in compliance with the Administrative Procedures Act. The intent is to have the mandate declared to be unconstitutional.

The argument will be made that the vaccine mandate is arbitrary and capricious and that agencies are required to consider all factors, including factors such as herd immunity and possible side effects. That has not been done.

The complaint will also attack the statement of safety from the Safer Federal Workforce Task Force as there is no explanation as to why the mandate is necessary or needed.

There is also an issue as to what limits apply to what a president can prescribe for the federal workforce. For example, can a president prescribe what type of car federal employees must drive in order to assist in limiting climate change or the type of food federal employees must eat to remain employed by the government?

Questions and Issues for Federal Employees

There are reasons federal employees may wish to join in the lawsuit—or not join. While a larger group joining in the lawsuit provides broader representation of the federal workforce and would involve more agencies and employees from more states, each employee will have to decide what is best for his or her personal situation.

For example, if a court does grant relief as a result of a legal complaint, it is possible the maximum relief will be limited to those participating in the lawsuit. Also, joining in the lawsuit requires a financial expense. The expense indicates the issue is one with potential serious impact for the federal employees who are impacted by the mandate.

Some federal employees have or may be seeking a security clearance. They have expressed concerns about joining a lawsuit as it could potentially prevent granting of the security clearance. Those employees will have to decide if joining the lawsuit will have that impact.

Others have expressed a concern they have to seek permission to join a lawsuit from a particular agency. These could be reasons for remaining anonymous and not being named in any lawsuit that is filed.

Some federal employees have expressed concerns about their status if they have requested a medical or religious exemption to the mandate. In other words, they have requested an exemption but have not been notified if their request will be granted and they may not know of the agency’s decision in time to avoid taking the vaccine. What happens if they are terminated before the lawsuit is decided?

No doubt, these cases are more complex. A woman who is pregnant, for example, and is concerned about the impact of a vaccine on her or her unborn child will have a tough decision to make. Perhaps the agency will grant the request at some point. She may be reinstated if she is terminated and if the lawsuit is successful.

On a different issue, some federal employees indicate they are being directed to attend five days of counseling and education regarding the necessity for receiving the vaccine and asked whether they should attend the training. The attorney’s advice was to attend the session as the employee could be terminated and may not be reinstated because of the failure to attend, even if the lawsuit to overturn the mandate is successful.

Will the Executive Order on the Vaccine Mandate Be Overturned?

Of course, no one knows what decisions will be forthcoming from various courts. The attorney conducting the briefing and, presumably, those joining in one of the lawsuits believe there is a serious prospect of success.

The vaccine mandate raises a large number of issues that will not be resolved quickly or easily. Federal employees may have to make decisions with considerable risk involving the vaccine and whether they will remain federal employees.

If a federal employee is terminated under the Executive Order, will there be a court decision that allows the employee to be reinstated? Will taking the vaccine potentially be harmful to some people, particularly those with specific medical issues? Will an employee with a religious reason for not taking the vaccine be able to avoid termination before relevant legal issues are resolved?

Should the courts determine the president’s actions pass legal muster, it may prove to be a significant change for the federal workplace. There are significant issues regarding the Privacy Act of 1974 and systems of records with personal data on federal employees that would be covered by this Act that have yet to be raised and addressed. There are also issues to be resolved regarding the Administrative Procedures Act as well as several statutes that have already been raised in litigation.

No doubt, there will also be personal issues involving religious freedom, freedom of expression, or whether President Biden will be found to have been arbitrary and capricious in imposing the vaccine mandate many months after the vaccine has been in use and terminating career federal employees who were presumably working to otherwise achieve presidential policy goals.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47